Viewpoint | Exploration of third-party mechanism compliance legal services
Published:
2022-05-14
I. Concepts related to compliance with third-party mechanisms 1. The third-party mechanism is the abbreviation of "third-party supervision and evaluation mechanism for compliance of enterprises involved in the case", which means that when the people's Procuratorate handles enterprise-related crime cases, it is handed over to a third-party supervision and evaluation organization elected by the management committee of the third-party supervision and evaluation mechanism to investigate, evaluate, supervise and inspect the compliance commitments of the enterprises involved in the case. 2. The customers of the third-party mechanism compliance legal service are enterprises suspected of unit crimes, or enterprises suspected of committing crimes closely related to production and business activities, such as actual controllers, management personnel, key technical personnel, etc. The alleged charges are economic crimes and job-related crimes committed by the enterprise in its production and business activities. The subject of the crime includes unit crimes committed by companies and enterprises, as well as individual crimes closely related to production and business activities committed by companies, actual controllers, management personnel, and key technical personnel. 3. The basis for carrying out third-party mechanism compliance legal services is the "Guiding Opinions on Establishing a Compliance Third-Party Supervision and Evaluation Mechanism for Enterprises Involved in Cases (Trial)" jointly issued by the Supreme People's Procuratorate in June 2021 in conjunction with the State-owned Assets Supervision and Administration Commission of the State Council, the Ministry of Finance, the All-China Federation of Industry and Commerce, the Ministry of Justice, the Ministry of Ecology and Environment, the purpose of the guidance is to establish and improve the compliance third-party supervision and evaluation mechanism of the enterprises involved in the case in the pilot work of promoting enterprise compliance reform in accordance with the law, effectively punish and prevent enterprise crimes, serve to ensure high-quality economic and social development, and help promote the modernization of the national governance system and governance capacity. II. Content of compliance legal services for third-party mechanisms 1. Help the enterprises involved in the case to apply to the procuratorate for enterprise compliance pilot and apply for a third-party mechanism. The contents of the application include whether the enterprise-related crime cases meet the requirements of the enterprise compliance pilot and the applicable conditions of the third-party mechanism; the opinions of the enterprises and individuals involved in the case on the application of the third-party mechanism; and the formulation of a compliance rectification work plan. 2. To form a compliance construction leading group with the actual controller, the main person in charge and the directly responsible person in charge of the enterprise involved, and set up a compliance management organization or management personnel suitable for the type, scale, business scope and industry characteristics of the enterprise. Help the enterprises involved to formulate feasible, effective and comprehensive special or multiple compliance plans, and clearly commit to the completion time limit of the compliance plan. The compliance plan includes reviewing the internal governance structure, rules and regulations, personnel management system, etc. of the enterprise and identifying the existing problems; formulating compliance management norms for the characteristics of the enterprise involved; establishing a comprehensive compliance management system; and improving the compliance risk prevention reporting mechanism. 3. Revise and improve the compliance plan according to the opinions and suggestions put forward by the procuratorate, help enterprises and employees to earnestly implement the compliance plan according to the time limit within the compliance inspection period determined by the procuratorate, and regularly report on the implementation of the compliance plan. Assist the enterprise to inspect and evaluate the performance of the compliance plan by the third-party organization on a regular or irregular basis. When the compliance inspection period expires, conduct a comprehensive summary of the completion of the compliance plan, issue a written report, and cooperate with third-party organizations to understand, evaluate, supervise and inspect the effectiveness of the special compliance rectification plan and related compliance management system of the enterprise involved. Third-party mechanism compliance legal services to help the enterprises involved. 1. The compliance construction of the involved enterprises that meet the requirements of the third-party organization shall include the effective identification and control of the compliance risks involved, the timely disposal of violations of laws and regulations, the reasonable allocation of compliance management institutions or management personnel, the establishment of compliance management system mechanism and the full guarantee of human and material resources, the normal operation of detection, reporting, investigation, handling mechanism and compliance performance evaluation mechanism, and the continuous rectification of compliance mechanism, form a compliance culture for the companies involved. 2. Carry out a series of compliance management system construction activities, such as improving the corporate governance structure, improving internal rules and regulations, training on compliance knowledge, guidance on compliance methods, identifying compliance risks and proposing compliance measures, so as to provide effective reference for the people's procuratorate to make decisions not to approve arrest, change compulsory measures and not to prosecute, and put forward sentencing suggestions for lenient punishment and punishment to the relevant competent authorities. Four Conclusion In March 2020, Shanghai Pudong, Jinshan, Jiangsu Zhangjiagang, Shandong Tancheng, Guangdong Shenzhen Nanshan, Bao'an and other six grass-roots procuratorates to carry out the "enterprise crime relative non-prosecution applicable mechanism reform", marking China's procuratorial organs to start the compliance non-prosecution system reform exploration. Compliance lawyers provide third-party mechanism compliance legal services for the companies involved in the case, which can not only vigorously protect the legitimate rights and interests of private enterprises and entrepreneurs, but also effectively promote private enterprises to build a bottom line of law-abiding and compliant operations. Continuously deepening and improving the compliance legal services of the third-party mechanism is a major reform and innovation measure to thoroughly implement the spirit of the important instructions of General Secretary Jinping and the major decisions and deployments of the Party Central Committee, to ensure high-quality development, and to help promote the modernization of the national governance system and governance capabilities. Important political, legal and practical significance.
I. Concepts related to compliance with third-party mechanisms
1. The third-party mechanism is the abbreviation of "third-party supervision and evaluation mechanism for compliance of enterprises involved in the case", which means that when the people's Procuratorate handles enterprise-related crime cases, it is handed over to a third-party supervision and evaluation organization elected by the management committee of the third-party supervision and evaluation mechanism to investigate, evaluate, supervise and inspect the compliance commitments of the enterprises involved in the case.
2. The customers of the third-party mechanism compliance legal service are enterprises suspected of unit crimes, or enterprises suspected of committing crimes closely related to production and business activities, such as actual controllers, management personnel, key technical personnel, etc. The alleged charges are economic crimes and job-related crimes committed by the enterprise in its production and business activities. The subject of the crime includes unit crimes committed by companies and enterprises, as well as individual crimes closely related to production and business activities committed by companies, actual controllers, management personnel, and key technical personnel.
3. The basis for carrying out third-party mechanism compliance legal services is the "Guiding Opinions on Establishing a Compliance Third-Party Supervision and Evaluation Mechanism for Enterprises Involved in Cases (Trial)" jointly issued by the Supreme People's Procuratorate in June 2021 in conjunction with the State-owned Assets Supervision and Administration Commission of the State Council, the Ministry of Finance, the All-China Federation of Industry and Commerce, the Ministry of Justice, the Ministry of Ecology and Environment, the purpose of the guidance is to establish and improve the compliance third-party supervision and evaluation mechanism of the enterprises involved in the case in the pilot work of promoting enterprise compliance reform in accordance with the law, effectively punish and prevent enterprise crimes, serve to ensure high-quality economic and social development, and help promote the modernization of the national governance system and governance capacity.
II. Content of compliance legal services for third-party mechanisms
1. Help the enterprises involved in the case to apply to the procuratorate for enterprise compliance pilot and apply for a third-party mechanism. The contents of the application include whether the enterprise-related crime cases meet the requirements of the enterprise compliance pilot and the applicable conditions of the third-party mechanism; the opinions of the enterprises and individuals involved in the case on the application of the third-party mechanism; and the formulation of a compliance rectification work plan.
2. To form a compliance construction leading group with the actual controller, the main person in charge and the directly responsible person in charge of the enterprise involved, and set up a compliance management organization or management personnel suitable for the type, scale, business scope and industry characteristics of the enterprise. Help the enterprises involved to formulate feasible, effective and comprehensive special or multiple compliance plans, and clearly commit to the completion time limit of the compliance plan. The compliance plan includes reviewing the internal governance structure, rules and regulations, personnel management system, etc. of the enterprise and identifying the existing problems; formulating compliance management norms for the characteristics of the enterprise involved; establishing a comprehensive compliance management system; and improving the compliance risk prevention reporting mechanism.
3. Revise and improve the compliance plan according to the opinions and suggestions put forward by the procuratorate, help enterprises and employees to earnestly implement the compliance plan according to the time limit within the compliance inspection period determined by the procuratorate, and regularly report on the implementation of the compliance plan. Assist the enterprise to inspect and evaluate the performance of the compliance plan by the third-party organization on a regular or irregular basis. When the compliance inspection period expires, conduct a comprehensive summary of the completion of the compliance plan, issue a written report, and cooperate with third-party organizations to understand, evaluate, supervise and inspect the effectiveness of the special compliance rectification plan and related compliance management system of the enterprise involved.
Third-party mechanism compliance legal services to help the enterprises involved.
1. The compliance construction of the involved enterprises that meet the requirements of the third-party organization shall include the effective identification and control of the compliance risks involved, the timely disposal of violations of laws and regulations, the reasonable allocation of compliance management institutions or management personnel, the establishment of compliance management system mechanism and the full guarantee of human and material resources, the normal operation of detection, reporting, investigation, handling mechanism and compliance performance evaluation mechanism, and the continuous rectification of compliance mechanism, form a compliance culture for the companies involved.
2. Carry out a series of compliance management system construction activities, such as improving the corporate governance structure, improving internal rules and regulations, training on compliance knowledge, guidance on compliance methods, identifying compliance risks and proposing compliance measures, so as to provide effective reference for the people's procuratorate to make decisions not to approve arrest, change compulsory measures and not to prosecute, and put forward sentencing suggestions for lenient punishment and punishment to the relevant competent authorities.
Four Conclusion
In March 2020, Shanghai Pudong, Jinshan, Jiangsu Zhangjiagang, Shandong Tancheng, Guangdong Shenzhen Nanshan, Bao'an and other six grass-roots procuratorates to carry out the "enterprise crime relative non-prosecution applicable mechanism reform", marking China's procuratorial organs to start the compliance non-prosecution system reform exploration. Compliance lawyers provide third-party mechanism compliance legal services for the companies involved in the case, which can not only vigorously protect the legitimate rights and interests of private enterprises and entrepreneurs, but also effectively promote private enterprises to build a bottom line of law-abiding and compliant operations. Continuously deepening and improving the compliance legal services of the third-party mechanism is a major reform and innovation measure to thoroughly implement the spirit of the important instructions of General Secretary Jinping and the major decisions and deployments of the Party Central Committee, to ensure high-quality development, and to help promote the modernization of the national governance system and governance capabilities. Important political, legal and practical significance.
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